Marriage rites vs. marriage rights

Guest Opinion

by Leland Traiman

Our community's singular focus on achieving the rites of
marriage is diminishing our chance of achieving the rights of marriage.

Our lawyers told us to trust the courts. Pro-same-sex
marriage California Supreme Court Justice Joyce Kennard told us to trust
"the courts alone." In the decision briefly legalizing California
same-sex marriage Kennard wrote, "an unconstitutional denial of a
fundamental right is not a matter to be decided by the executive or the
legislative branch, or by popular vote, but by the judicial branch of
government" and "the courts alone must decide whether excluding
individuals from marriage because of sexual orientation can be reconciled with
our state constitution's equal protection guarantee."

Fine words. Lofty rhetoric. Now, fearing possible recall,
Kennard (pronounced canard) has changed her mind saying that a popular vote,
"the power of the people," is supreme even if it takes away "a
right as fundamental as marriage." (Her words.)

We have had many court cases with few successes. Each case
caused a tidal wave of reaction totaling 31 defeats in 32 elections and 45 of
50 states banning same-sex marriage. Our temporary success in California
resulted in Prop 8 and similar losses in Arizona and Florida. As righteous as
this cause is the strategy to achieve it has been a failure.

The history of our fight for the rights of marriage proves
we cannot trust the lawyers to be right, we cannot trust the judges to be
consistent, and we certainly cannot trust a popular vote of the people to be
compassionate.

Our only consistent success has been working through
legislative bodies. And right now the dirty art of compromise, necessary for
the political process, is all we have left. Thank goodness we are amazingly successful at it. Not one of
the multitude of domestic partnership or civil union laws passed by legislative
bodies have ever been directly overturned. Rather, they have only been
overturned when added to an anti-same-sex marriage law.

We could continue to slog it out, state by state, defeat
after defeat. But even when we do occasionally win "marriage" those
victories will not result in true marriage equality because they will lack the
federal benefits of marriage. The federal rights of joint income tax, shared
Social Security benefits, and immigration rights (plus over 1,000 more) are far
more important than state benefits. Having the rights of marriage is far more
important and life changing than a legal category labeled "marriage"
which is devoid of rights.
Marriage in California, Massachusetts, and Connecticut did not, does
not, and will not have federal rights if our focus remains on the states.

President Obama wants Congress to repeal the Defense of
Marriage Act and enact legislation giving federal marriage rights to
"legally-recognized unions." This means that anyone in the 11 states
and Washington, D.C. that have same-sex marriage, civil unions or domestic
partnership could have full federal marital rights. This also means that if you
live in any of the other 39 states you could travel to Massachusetts and get
married or to Vermont to get a civil union or to California, Washington, or
Oregon and sign up as registered domestic partners and have all the federal
marital rights even if your home state does not grant you state marital rights.
Marriage rights coast to coast despite our state by state losses. That would be
a great accomplishment. (Dare I say, "Change we can believe in"?)

The fight for a legal category labeled "marriage"
in California is a noble one. But history shows that when the same proposition
is put on the ballot too soon the result is the same. Even if we defy history
and win we will still not have marriage equality because it will not have
federal rights. More importantly, we will have passed up our chance to put our
energies toward achieving federal marriage rights when our president has high
approval ratings and we have large Democratic majorities in the House and
Senate. We will probably have smaller majorities after the 2010 midterm
election. Since 1942 the sitting president's party has lost an average 28 House
seats and four senators in midterm elections. So the time to act is now.

Our past strategy has been an overwhelming failure. We can
cling to it or we can change to a strategy with a successful track record. We
can continue to fight for the rites of marriage in California or we can follow
Obama's suggestion and fight for the rights of marriage in the United States
Congress. If we follow Obama we can achieve our rights. If we refuse to change
course we will have neither our rites nor our rights. Imagine: Equal marriage rights throughout the land. The
choice is ours.

Leland Traiman chaired Berkeley's 1983 Domestic Partner Task
Force, which wrote the world's first domestic partnership policy enacted into
law. Leland founded Rainbow Flag Health Services & Sperm Bank (http://www.GaySpermBank.com) and
successfully defended the rights of gay sperm donors against the Food and Drug
Administration. He lives in Alameda, California, with his husband of 18 years
and their two children, ages 9 and 3.